ETHICS OPINION 394-1950

NUMBER 394 1950

Question. During his lifetime X, acting on behalf of himself and for certain foreign distributees of the estate of Y, called with Mrs. Y the executrix of Y’s estate, at the office of an attorney and advised the attorney of an agreement they had entered into, and asked the attorney to draw certain releases to implement the agreement. The attorney at the time was acting as attorney for Mrs. Y as executrix, but was regarded by X as his own advisor in legal matters. The attorney drew the releases which were duly executed in the presence of both parties, and held them in escrow pending the delivery of other documents. Thereafter X died, and Mrs. Y’s second husband called at the attorney’s office, asked to see the releases, and when they were shown to him physically destroyed them in the presence and over the protests of the attorney.

The attorney has been requested by the foreign distributees of Y’s estate, whose interests are materially affected by the agreement made on their behalf between X and Mrs. Y as executrix, to make an affidavit with respect to the foregoing facts. The advice of the Committee is sought as to whether the attorney would be guilty of an impropriety in furnishing such affidavit.

Answer, In the opinion of the Committee, it would be entirely proper for the attorney to furnish the affidavit requested. Both parties to the original transaction having been present, there was nothing confidential in the communication as between the attorney, X, and Mrs. Y.

It is well established as a matter of law that where communications are made to an attorney in the presence of all parties to the controversy, they are not privileged to any of these parties. Britton v. Lorenz, 45 N.Y. 51, 57; Hebbard v. Haughian, 70 N.Y. 54, 61; Hurlburt v. Hurlburt, 128 N.Y. 420, 424; Doheny v. Lacey, 168 N.Y. 213; see also 8 Wigmore on Evidence, 3rd, Section 2312.

The fact that X is now deceased does not change the situation. (See A.B.A. Opinion 91, and Doheny v. Lacey, above.)